Appeal from the Circuit Court of Cook County; the Hon. Arthur
J. Cieslik, Judge, presiding.
JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendants, John and Derryl Shelton, were found guilty of aggravated battery and armed violence. Derryl Shelton was sentenced to five years' imprisonment. John Shelton was sentenced to three years' probation conditioned on six months' imprisonment. On appeal, both defendants contend that (1) the trial court erred in refusing to submit a self-defense instruction to the jury; (2) the jury was improperly instructed on the law of accountability and on the weight to be given defendants' testimony; (3) the hearsay testimony of the arresting officer should have been excluded; (4) the cross-examination of a State witness concerning her sexual relationship with the victim was improperly restricted; and (5) improper statements during closing argument and misconduct by the prosecutor denied defendants a fair trial. Defendant John Shelton alone appeals from his sentence.
At trial, Kevin Golar, the victim, and Denise West, his girlfriend, gave substantially the same testimony. On May 6, 1981, at about 6:30 p.m., Golar and West went to a liquor store. While in the store, West had a conversation with defendant Derryl Shelton, whom she had once dated. After they left the store, Golar asked West what the defendant had said to her. West stated that the defendant called her a prostitute. Golar was angered by the remark and followed the defendant. An argument developed outside the liquor store between Golar and the defendant. Golar slapped the defendant in the face with his open hand and the defendant ran away. Golar then walked with West to her home. A few minutes after they arrived at the home, Golar heard West's daughter and a playmate screaming and went out on the porch to see what was wrong. The defendants were standing on the sidewalk. Defendant John Shelton held a baseball bat in his hand. Defendant Derryl Shelton had a crowbar in his hand and a six-inch kitchen knife in his back pants pocket. The defendants approached the porch with their weapons raised in the air, while stating to Golar that they were going to kill him. Golar started down the porch stairs, picked up a bicycle, and held it over his head to protect himself. The defendants began swinging their weapons at Golar's head. Golar backed away onto a neighbor's front lawn fending off the defendants' blows with the bicycle he was holding. Defendant John Shelton picked up another bicycle which was lying on the ground and threw it at Golar. The blow knocked Golar backwards into some bushes. He threw the bike off himself and started to get up but lost his balance and once again fell to the ground. Defendant Derryl Shelton then took the knife out of his pocket and stabbed Golar.
Defendants testified to a substantially different version of the facts. Derryl Shelton testified that he was standing outside a liquor store on the evening of May 6, 1981, when he saw Denise West, his former girlfriend, with Kevin Golar. Defendant stated that West approached him and asked when they were going to resume their relationship. Defendant told West that he did not want to resume the relationship because of a conversation he had with Kevin Golar a couple of days previous. Golar then came out of the liquor store and asked defendant what he was doing with West. An argument developed between Golar and defendant. Golar grabbed defendant by the shoulder, punched him in the face twice, knocked him to the ground, and then repeatedly kicked him in the stomach and side. Defendant escaped and went home. Later, defendant decided that he should go to West's house to find out why Golar was angry with him. He took with him a six-inch kitchen knife. On the way to West's home, he met his brother, defendant John Shelton, and told him to come along. When they arrived at West's home, defendants rang the doorbell and then backed down the steps. Kevin Golar came out of the house, picked up a bicycle and advanced on the defendants. West tried to break up the quarrel. Golar, however, continued to charge at the defendants. Defendant, Derryl Shelton, reached into his back pocket and took the knife out and extended it in Golar's direction. Golar ran directly into the knife and suffered a stab wound in his abdomen. Defendant testified that he did not intend to stab Golar.
At the instructions conference following the close of the evidence, the defendants requested that a self-defense instruction be submitted to the jury. The trial court denied the request. The court held that since the defendants, armed with a six-inch knife, sought out the victim, they were the aggressors. Further, the court stated that defendant Derryl Shelton's testimony indicated that the stabbing was accidental, which would be inconsistent with a defense of self-defense.
Defendant's first argument on appeal is that the trial court erred in refusing to instruct the jury on self-defense since self-defense was a factual issue for the jury to determine. Defendants contend that the evidence was sharply conflicting on the issue of whether defendant Derryl Shelton was the aggressor in the quarrel with the victim or whether it was an accidental stabbing.
• 1 A defendant charged with a violent crime, such as murder or aggravated battery, cannot simultaneously rely upon the defenses of justifiable use of force and accidental use of force. (People v. Tanthorey (1949), 404 Ill. 520, 89 N.E.2d 403.) This court explained the rationale for this rule in People v. Purrazzo (1981), 95 Ill. App.3d 886, 420 N.E.2d 461, as follows:
"By its very nature self-defense, whether reasonable or not, relates to the intentional or knowing use of force and not to an accidental shooting. If defendant acted in what he believed to be self-defense, he must have fired the weapon intentionally or knowingly. If the gun was accidentally discharged, all questions of self-defense are out of the case." 95 Ill. App.3d 886, 893, 420 N.E.2d 461, 467.
• 2 We agree with the defendants that the question of whether a defendant reasonably believed he needed to use deadly force to repel an imminent unlawful attack is a question of fact which should be determined by the jury. (People v. Woods (1980), 81 Ill.2d 537, 410 N.E.2d 866.) The question, however, of whether a party in a criminal case has introduced evidence sufficient to support a finding on a particular factual issue is a question of law to be resolved by the trial court. People v. Woods (1980), 81 Ill.2d 537, 410 N.E.2d 866.
• 3 In the instant case, defendant Derryl Shelton testified that he pulled a knife out of his back pocket and the victim accidentally "walked into the knife." He further testified that he did not intend to stab the victim. Thus, since it was defendant's position at trial that the stabbing was accidental, he cannot also argue that it was in self-defense. (People v. Tanthorey (1949), 404 Ill. 520, 89 N.E.2d 403; People v. Purrazzo (1981), 95 Ill. App.3d 886, 420 N.E.2d 461.) Further, the victim and Denise West both testified that the defendants came to West's home armed with various weapons. The defendants themselves testified that Derryl Shelton was armed with a six-inch knife. Our review of this evidence leads us to conclude the trial court was correct in its determination that the defendants were the aggressors in the altercation which led to the stabbing of the victim. Since the defendants were the aggressors they cannot rely upon the affirmative defense of justifiable use of force. Ill. Rev. Stat. 1979, ch. 38, par. 7-1; People v. Walker (1978), 58 Ill. App.3d 535, 374 N.E.2d 880.
• 4 Defendant calls our attention to the recent decision of this court in People v. Brooks (1985), 130 Ill. App.3d 747, 474 N.E.2d 1287. In Brooks, the complaining witnesses testified that the defendant walked up to a truck they were in and opened fire with a gun. The defendant testified that a shooting occurred over a struggle with a gun, after defendant's stepson attempted to shoot defendant from a truck as defendant walked on the street. The defendant's testimony was corroborated both by medical evidence regarding the entry point of the wounds sustained by a passenger in the vehicle and the passenger's testimony. The court held that, based on the evidence presented, the preceding events could place the shooting in the context of self-defense and, therefore, a self-defense instruction was required. We do not believe the preceding events in the case at bar require a similar instruction. The defendants, by their own testimony, sought out the victim at the home of his girlfriend armed with a six-inch kitchen knife. No additional evidence was presented on the issue of self-defense. We agree with the finding of the trial court, that on the basis of defendants' testimony, a self-defense instruction was not required.
Defendants next contend that the jury received improper instructions on the law of accountability. Following oral argument in this matter, a supplemental record was filed by the State which amended the record to reflect that the jury received the appropriate instructions on accountability.
• 5 Defendants further argue that the jury received improper instructions on the weight to be given statements by defendants. At trial, Officer Swich and an assistant State's Attorney testified that the defendants made certain incriminating statements to them at the police station following the stabbing of the victim. The defendants denied making the statements. The standard instruction on statements by defendants reads as follows:
"You have before you evidence that the defendants made statements relating to the offenses charged in the information. It is for you to determine whether the defendants made the statements, and, if so, what weight should be given to the statements. In determining the weight to be given to a statement, you should consider all of the circumstances under which it ...